ELECTION 2010: Democracy in dilemma

&#9632; In Dar es Salaam, Chief Justice cautions deputy AG that as it stands now, independent candidates are allowed as govt seeks 4-month hearing extension
&#9632; In Dodoma, Speaker sends Election Bill back to Bunge committee
&#9632; Activists divided over its opposition.
By Bernard James
THE CITIZENChief Justice Augustino Ramadhani yesterday led six other Court of Appeal Judges in criticising the manner in which the government was handling its appeal against a lower court's judgment allowing independent candidates to contest elections.

Besides the stinging criticism, the bench reminded the State that its actions did not legally bar anyone from standing in the October General Election as an independent candidate.

The sentiments in the case that could have far-reaching implications on the opening up of democratic space in the country were echoed when the Court of Appeal began hearing the government's appeal against the High Court's verdict that independent candidates be allowed seek political office.

The issue of whether or not to allow independents to participate in elections has generated a lot of public interest and the case before the Court of Appeal is bound to heighten that interest, this being an election year.

Currently, MPs and the public are discussing the pros and cons of an election Bill seeking to regulate the use of money and other campaign irregularities.

The entry into the scene of a new political party, the Chama Cha Jamii (CCJ), has also prompted a passionate debate after it was linked with prominent CCM politicians who have, however, distanced themselves from the party.

At the Court of Appeal, parties pushing for independent candidates listened with keen interest as Mr Justice Ramadhani and the other judges tore into the government's defence team led by Deputy Attorney General George Masaju.

They jointly expressed dissatisfaction with Mr Masaju's plea that the appeal, which was being heard for the first time since it was first lodged last May, be adjourned for another four months.

The High Court delivered its judgment in 2006, but the issue was first raised back in 1994 by maverick opposition politician Christopher Mtikila.

In seeking the adjournment, that was eventually cut to only two months, Mr Masaju argued that the State had not had sufficient time to respond to grounds raised by the respondents.

The deputy AG also said Mr Mathew Mwaimu, a principal state attorney who was in charge at the High Court proceedings, could not attend as he was away attending to his sick father.

But Rev Mtikila's lawyers, Mr Richard Rweyongeza and Mr Mpoki Mpale, said the four months the State had asked for were meant to deliberately delay the case.

Their arguments promoted the bench to adjourn hearing for 40 minutes to prepare an order. Their scathing criticism came after the short break.

"We must point out that we are burdened at heart by the first ground. It was the appellant who started taking essential steps very late and use that as an excuse for an adjournment," the CJ said.

On Mr Mwaimu's absence, the bench said a senior advocate such as the deputy AG was not supposed to put forward such an excuse for the sake of obtaining an adjournment.

"However, for the avoidance of doubt, we wish to refresh the memories of the learned Deputy AG and his team that an appeal does not amount to an automatic stay. So the law as it is at the moment and onward to the General Election in October is what the High Court has decided, that is, independent candidates are allowed."

The bench then ruled that the case resume on April 8.

The campaign to have private candidates dates back some 16 years back when Rev Mtikila instituted a constitutional petition to enforce some of his basic rights including the right to participate in public affairs without being forced to join a political party.

In October 1994, the late Mr Justice Kahwa Rugakingira ruled that the amendments made to articles 39, 67 and 77 of the Constitution restricting the right to contest in elections to political parties candidates only were capable of being abused to confine the right of governing to a few and to render illusory the emergence of a truly democratic society.

The government appealed but later withdrew the case and rushed a Bill to parliament to amend article 39, 67 of the constitution which restricted private candidates, making it mandatory that any Tanzanian wishing to contest for presidency or MP must first join a political party.

Following the amendments, Rev Mtikila filed another constitutional petition to challenge the amendments, and again won but the government challenged the High Court's verdict on the grounds that the making of laws was the preserve of Parliament.